[Congressional Record: March 11, 1998 (Senate)]
[Page S1770-S1771]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr11mr98-128]


    ADVOCACY OF THE DIGITAL COPYRIGHT CLARIFICATION AND TECHNOLOGY
                         EDUCATION ACT OF 1997

  Mr. ASHCROFT. Madam President, I rise today to talk about the role of
government in the technology sector. Two things can be predicted with
confidence about congressional meddling in this sector of the economy.
First, legislation will be obsolete on the day it is passed. Second, it
will hurt consumers, students, teachers, workers, shareholders, and the
economy. if Congress had helped set up the automobile industry, there
still might be a livery stable in every town, and buggy whip factories
in large cities. America's dynamic, world-leading computer industry
must be kept free of regulation by slow-moving federal bureaucrats who
cannot possibly understand or keep pace with the most dynamic sector of
the economy.
  Taken together, these developments highlight the need for Congress to
step back and draft with care the necessary legislation to extend
copyright protections to those who develop content for the digital age,
instead of blindly racing ahead to enact a Clinton Administration
proposal supported by major Hollywood interests.
  Consider the consequences. Last year, Americans purchased 11 million
PCs and 16.8 million VCRs. This year, another 12.6 million PCs and 16.6
million VCRs are expected to be purchased in the United States. These
devices enjoy great popularity. At least one VCR is found in 90 million
homes and at least one PC is found in 42 million homes, specifically
because of the convenience, entertainment and efficiency they bring.
They are popular precisely because they are useful and technologically
advanced. Nonetheless, a House subcommittee specifically rejected an
amendment that would have

[[Page S1771]]

assured consumers access to the next generation of these products.
  This isn't the first time someone has tried to stop the advance of
new technology. In the mid 1970s, for example, a lawsuit was filed in
an effort to block the introduction of the Betamax video recorder. At
that time, representatives of Hollywood declared that the VCR would
destroy their business. They could not have been more wrong. Last year
video tape rentals accounted for a $16 billion portion of the
entertainment market. Indeed, people in the movie industry have stated
that video sales often make a movie profitable, and some movies are
produced exclusively for the home rental market. The movie industry has
not learned from history. The same doomsayers are at it again, decrying
the lawful use of products by consumers. Their rhetoric has been
updated for the digital age, but their message remains the same.
  This is an important debate that is currently taking place in the
Congress and that is the discussion regarding how best to update the
copyright laws for the digital age. In particular, I want to bring to
the attention of my colleagues two significant developments that
occurred in the last weeks, and to urge you to join as cosponsors of S.
1146, the Digital Copyright Clarification and Technology Education Act
of 1997.
  In order to help focus the debate on the best way to update the
copyright laws for the digital era, I introduced S. 1146 in September.
This legislation is a comprehensive effort to address three broad areas
of critical importance to the future of the Internet: (1) the scope of
copyright liability for on-line and Internet service providers; (2) the
use of computers by teachers, librarians, and students to foster
distance learning opportunities and to promote the preservation of
important historical works and resources; and (3) the proper
implementation of two international copyright treaties. Subsequently,
Representatives Rick Boucher and Tom Campbell introduced a similar
comprehensive bill in the House (H.R. 3048) to foster the growth of the
Internet for the benefit of everyone in society.
  Two important developments took place in the past two weeks that
underscore the importance of a comprehensive approach to updating the
copyright laws. First, on February 25th, 40 distinguished professors of
intellectual property law and technology law said in a letter to the
Chairmen of the Senate and House Judiciary Committees that they believe
these two bills, S. 1146 and H.R. 3048, ``taken together, would bring
U.S. law into compliance with the WIPO treaties while preserving the
principle of balance which is at the heart of the American copyright
tradition.'' They went on to say: ``At this crucial moment in the
history of American intellectual property law, it is important that
Congress do neither too much nor too little to bring copyright law into
the digital era. In our view, the Ashcroft-Boucher-Campbell bills get
the balance right.''
  Second, just one day later, in a major blow to consumers and the
high-tech community, a House subcommittee voted out legislation that
would make it illegal to produce or even possess future generations of
VCRs and personal computers. Faced squarely with the question of
whether the next generation of products found in virtually every home
in America should be deemed unlawful ``circumvention'' devices, a
majority of the subcommittee voted for the interests of copyright
owners over the interests of consumers and the computer companies that
have done so much to make our country the technology leader of the
world.
  The Subcommittee vote endangers both the liberties that consumers now
enjoy and the vitality of the technology industry, which has been the
premiere engine for growth in the United States. This approach also
suggests the tendency of Congress to ``fix first, ask questions
later.'' The bill demonstrates the dangers of fixing what we do not
understand. Now is the time to draw a bright line against federal
regulation of the computer industry. Washington must not start down the
road of dreaming up regulations to fix problems that may or may not
exist.
  I think it useful to recall what the Supreme Court had to say in
ruling for consumers and against two movie studios in that case:
  ``One may search the Copyright Act in vain for any sign that the
elected representatives of the millions of people who watch television
every day have made it unlawful to copy a program for later viewing at
home, or have enacted a flat prohibition against the sale of machines
that make such copying possible.''
  As someone who filed an independent brief in the Supreme Court as the
Missouri Attorney General in support of the right of consumers to buy
that first generation of VCRs, I want to reassure consumers across the
country that I will fight against legislation that would ban the next,
exciting generation of technology.
  What kind of a bill should we consider? One that looks to the future.
Above all, one that maintains the balance the professors of
intellectual property and technology law have reminded us is at the
core of our great copyright tradition and protection of property. The
House subcommittee bill would make it all but impossible for someone to
make a fair use of a copyrighted work, even though a fair use exception
has been a fixture of copyright law from the beginning. What is more,
the bill would actually make it illegal to make a copy of a portion of
a protected work for fair use in certain circumstances. This is not
balance. This is a blank check payable to Hollywood.
  Unlike the bill starting to move through the House, S. 1146 will spur
technological innovation in small entrepreneur workshops and clean-room
factories; it will create new educational opportunities in brick
schoolhouses and family living rooms; and it will help preserve
deteriorating manuscripts in your local library and the nation's
largest universities.
  The Digital Copyright Clarification and Technology Education Act will
encourage the use of computers and other new high-tech products to
foster educational opportunities for everyone from children to senior
citizens. Twenty-two years ago, Congress recognized that television
could connect teachers in one part of town to students in another part
of town. Today, technology has moved forward and has provided this
country with fantastic new opportunities. We need to update the law so
that schools may use computers to bring the world into the classroom
and the classroom into the home.
  This legislation will ensure librarians and archivists may use the
latest high-tech equipment to preserve deteriorating books,
manuscripts, and works of art for future genrations to enjoy. New
digital technology can enhance the educational experience and preserve
our shared culture and history far into the future. Library patrons and
students shouldn't be consigned to outmoded equipment when exciting new
digital products are on the horizon.
  S. 1146 will guarantee that the centuries-old ``fair use'' rights of
students, library patrons, scholars, and consumers will continue to be
recognized in the new digital era of the Internet.
  In addition the legislation will encourage personal computer
manufacturers and software developers to create new products which
promote the productivity of Americans across the country. Innovators
shouldn't be threatened with criminal penalties for bringing exciting
new products to market. Instead, they should be encouraged to develop
new products that will add enjoyment and convenience to our lives,
while creating good new jobs for American workers.
  Finally, we will encourage the growth of the Internet by eliminating
the threat of certain copyright infringement lawsuits that telephone
companies, service providers, and others face in helping consumers
connect to the World Wide Web.
  Technology won't stand still. We need to move forward with the
consideration of copyright legislation that promotes new technology,
while protecting intellectual property rights. In doing so we must be
diligent in looking to the future, not to the past, or to interests
that would halt innovation to serve their own parochial concerns.
  At this critical juncture in history, we need to be sure we get it
right. We can only do so by maintaining the balance that has served our
country so well and for so long.

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